The 26th Amendment to the Constitution of Pakistan, also known as the Constitution (Twenty-sixth Amendment) Act, 2024, was passed by Parliament on October 20-21, 2024. This amendment introduces significant changes to the country’s judicial, parliamentary, and executive frameworks.
1. Purpose behind the amendment:
a. JUDICIAL INDEPENDENCE: To limit the judiciary’s power and prevent potential overreach, as seen in previous instances where the Supreme Court took suo motu actions.
b. POWER DYNAMICS: To shift the balance of power from the judiciary to the executive and legislative branches.
c. ECONOMIC AND POLITICAL STABILITY: To boost the government’s credibility and stability amidst economic challenges and protests.
2. Major Changes Introduced By The Amendment :
•Removal of Suo Motu Prerogative: The Supreme Court’s power to take suo motu actions has been removed. It is also the modified procedures for suo motu actions previously held by Supreme and High courts that are instead placed in the hands of a judicial committee under the Practice and Procedure Act
•Tenure of Chief Justice: The Chief Justice of Pakistan’s tenure is now capped at three years. Under changes to Article 175A’s Clause 2, which deals with the appointment of apex court judges, while the Chief Justice of Pakistan (CJP) retains their role as the chairperson, the JCP will now also feature a “presiding judge” as a member.
•Judicial Commission of Pakistan: Reconstituted to oversee judicial appointments. The Special Parliamentary Committee responsible for the nomination of the Chief Justice is to hold its meetings in an in-camera sitting. The JCP is given the authority to “review” the performance of Federal Shariat Court (FSC) and High Court judges, in addition to appointment prerogatives.
•Constitutional Bench: A separate constitutional bench has been established in the Supreme Court. According to clause 5 of Article 191A, “all petitions, appeals or review applications against judgments rendered or orders passed, to which clause 2 applies, pending or filed in the Supreme Court before commencement” of the 26th Amendment
•Environmental Rights: Article 9A declares every person’s right to a clean, healthy, and sustainable environment as a fundamental right.
•Elimination of Riba: Paragraph (f) of Article 38 (promotion of social and economic well-being of the people), which currently only mentions “eliminate riba as early as possible”, shall be replaced with “eliminate riba before” Jan 1, 2028.
3. Reactions and Criticisms:
The amendment has received criticism from lawyers and opposition parties, who claim it undermines judicial independence and is an attempt to politicize the judiciary. The PTI party alleged that seven of its lawmakers were abducted to secure votes. The International Commission of Jurists stated that the package is a “blow to judicial independence, the rule of law, and human rights protection.
•Criticism from Lawyers and Experts:
Lawyers and experts have termed the amendment as an “assault on judicial independence” and the “biggest reversal” of judicial independence in three decades. Five interviewed lawyers/barristers in Dawn called it a “blow to the constitutional order,” “politicizing the judiciary,” and “emasculating the judiciary.”
• Concerns about Judicial Independence:
The International Commission of Jurists (ICJ) stated that the package is a “blow to judicial independence, the rule of law, and human rights protection”. The amendment’s removal of the Supreme Court’s suo motu powers and the reconstitution of the Judicial Commission of Pakistan has raised concerns about the erosion of judicial autonomy.
•Allegations of Coercion and Intimidation:
Opposition parties, including PTI, have alleged that the government used coercive tactics to secure votes, including the abduction of lawmakers and their families. Akhtar Mengal, leader of the Balochistan National Party, claimed that two of his party’s senators were abducted.
Conclusion:
The 26th Amendment marks a significant milestone in Pakistan’s journey towards strengthening democracy, ensuring accountability, and promoting judicial restraint. This regressive amendment threatens the rule of law, empowering the executive at the expense of judicial autonomy.
By curtailing suo motu powers, the 26th Amendment compromises Pakistan’s ability to hold those in power accountable. This amendment reflects the complex interplay between politics, law, and power in Pakistan’s evolving democracy. As Pakistan navigates this constitutional shift, its implications for governance, accountability, and human rights will be closely watched.
